State v. Grad
2017 Ohio 8778
Ohio Ct. App.2017Background
- Kenneth Grad was convicted by a jury of five counts of child endangering and three counts of felonious assault for injuries to his infant son.
- On direct appeal Grad asserted his trial counsel was ineffective for not calling medical experts to rebut the State’s medical testimony; the Ninth District rejected that claim as reasonable trial strategy.
- Grad filed a petition for post-conviction relief under R.C. 2953.21, again alleging ineffective assistance for failure to present expert testimony and supporting the petition with expert reports and affidavits.
- The trial court denied the petition without an evidentiary hearing, concluding the claims were barred by res judicata and that counsel’s decision not to call experts was trial strategy.
- Grad appealed the denial; he did not challenge the trial court’s res judicata determination in his appellate brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to present medical experts | Grad: counsel’s failure to call experts was professionally deficient and undermined verdict reliability | State: claim was raised or could have been raised on direct appeal and is barred by res judicata; decision was trial strategy | Court: claim barred by res judicata; overruled Grad’s assignment of error |
| Whether the trial court erred by denying an evidentiary hearing on the post-conviction petition | Grad: affidavits and expert reports outside the trial record warranted a hearing under R.C. 2953.21 | State: petition and attachments did not present operative facts outside the record sufficient to entitle relief; court has discretion to deny hearing | Court: no error; petitioner failed to show evidence outside the record sufficient to warrant an evidentiary hearing; assignment overruled |
Key Cases Cited
- State v. Szefcyk, 77 Ohio St.3d 93 (1996) (final conviction bars claims raised or that could have been raised on direct appeal under res judicata)
- State v. Calhoun, 86 Ohio St.3d 279 (1999) (trial court may deny postconviction relief without hearing where petition and record do not show sufficient operative facts)
- State v. Broom, 146 Ohio St.3d 60 (2016) (evidentiary hearing in postconviction proceedings is not automatic; petitioner must submit evidence outside the record establishing entitlement to relief)